The Queen v. Commissioners of Sewerage, &c. Acts in amendment and incident thereto, for abstraction of the water by the Commissioners, and requested them to take the necessary steps for summoning a jury to assess such damages. The Commissioners declined to take any steps, and A gave them a further notice, stating that they had refused to agree upon the amount of compensation for obstructing the stream and diverting the water, and requiring them to take the necessary and legal steps pointed out by the Acts 2 Wm. 4, c. 26, 12 Vict., c. 51, and 18 Vict., c. 38, or any of them, for determining the amount of compensation to be paid for all or any damage which he was entitled to receive in his own right, or in behalf of the other heirs, as well for the acts of the St. John Water Company as of the said Commissioners. The Commissioners declined to take any proceedings on this application, stating that they were not aware that any damage bad been done to A by their operations. Held, on application by A for a man damus 1.--That the Commissioners were right in refusing to act on the first notice—the mode of proceeding under the Acts 2 Wm. 4, c. 26, and 12 Vict., c. 51, being by arbitration, and not by a jury. 2.--That the Commissioners had no power to act under the 2 Wm. 4, c. 26, even if they had been requested to take the proceedings pointed out by that Act. 3.—That as all rights and remedies against the Water Company were preserved by the 18 Viet., c. 35, the Commissioners were not bound to apply for a jury to assess damages for the acts of the Water Company, as required by the second notice. 4.--That without showing who the other owners of the property were, and how A was entitled to claim on their behalf, a mandamus could not be issued to assess the damages due to them, but must be confined to A's interest in the land. 5.- That it was sufficient for A to show by his affidavits a prima facie case of title to the land, and that he need not produce his deeds. 6.--That the allegation of the withdrawal from its natural course of a large quantity of water from a stream flowing through A's land, showed a prima facie case of damage to him. 7.--That a demand in the alternative, to do one of two things, and a general refusal, was sufficient to found an application for a mandamus, if the applicant was entitled to part of what he claimed. S.-That a request to a public officer, to take the necessary and legal steps pointed out by an Act of Assembly, to assess damages for an injury done to the applicants property under the authority of the Act, was sufficiently specific. 9.--That en objection that there had been no sufficient demand could not be taken after the merits of the application had been discussed. 10.--That where an application for a man-lamus fails, because there was no demand and refusal, it cannot, as a general rule, be renewed after a demand; though there may be circumstances warranting a departure from this rule. This was an application for a mandamus, to the Commissioners of Sewerage and Water Supply of the City of St. John, to compel them to proceed under the Act 18 Vict., c. 38, to assess the damages claimed by the applicant, Amos E. Botsford, in consequence of the works of the Commissioners in carrying out the provisions of the Act. The facts are fully stated in the judgment of the Court. A rule aid having been granted in Easter Term last, The Queen v. Commissioners of Sewerage, &c. Watters, Q. C., shewed cause in Trinity Term last, and A. R. Wetmore, Q. C., was heard in support of the rule. RITCHIE, C. J., now delivered the judgment of the Court. The affidavits on which the rule was moved, set forth that Sarah L. Botsford, the mother of Amos E. Botsford, was owner in fee of a lot of land in the Parish of Simonds, containing a mill site, &c. That in the year 1824, Sarah L. Botsford and her then husband, the late Honorable William Botsford, entered into the actual possession of the aforesaid land and premises and all the rents and profits thereof; that a natural stream of water, called Little River, ran through and across the said lot, having within its boundaries, natural falls of water about one hundred feet in height, of great value for mill and manufacturing purposes, near the City of St. John, and over which falls the water of said river and all its tributaries had, from time immemorial, been accustomed to flow and pass over without diversion or obstruction; that Sarah L. Botsford died on the 4th of May, 1850, leaving the said William Botsford her surviving, and a number of heirs, as tenants in common, of whom the applicant, Amos E. Botsford, is one. That on the 8th December, 1837, by indenture between William Botsford and Sarah L. Botsford of the one part, and John Duncan of the other part, the said premises were leased for the term of fourteen years from 3rd May, 1838; and that on the 6th June, 1853, William Botsford by deed poll renewed the said lease to the assignees thereof for fourteen years. That in the year 1850 or 1851, the St. John Water Company, without the consent of the said William Botsford, the tenant by the courtesy, or of the said Amos E. Botsford or of any of the heirs of the said Sarah L. Botsford, for the purpose of diverting the waters of Little River from its natural channel, caused certain obstructions to be made in and upon Little River, about one mile and a half above the mill and erections which had been put up for the purpose of manufacturing; that' on the 26th March, 1851, William Botsford forbid the said Water Company from diverting, by any way or means, the water from Little River, or preventing its flowing in the natural channel through the said lot, holding them responsible for all damages and losses already incurred, or that might thereafter be incurred; that after service of such notice, and in disregard thereof, the said company proceeded to put a dam across the river, and a twelve-inch main into said dam, and did divert a large quantity of water from its natural channel. That some time in the year 1853, as the said Amos E. Botsford was informed and believed, the Water Company leased a lot of land below the said dam to Thomas A. Phillips, for twenty-one years from 1st July, 1851, at a yearly rent The Queen . Commissioners of Sewerage, &c. of £40, together with the right of active power to be obtained from a sluice-way opening into the said dam, which sluice-way was built by, and under the control of the said Phillips; that some time in the year 1854, the dam and mills so erected by the said company were damaged and partially carried away, and from that time to the present have been repaired, kept up, and added to by the Commissioners of Sewerage and Water Supply, &c. That during the year 1857 the said Commissioners, without the consent of William Botsford, or Amos E. Botsford, laid down a twenty-four inch main. into or from the said dam or reservoir, by means of which, together with the twelve-inch main, they have a present capability of withdrawing from the waters of said Little River 5,500,000 Imperial gallons of water every twenty-four hours, as stated in their printed report for 1857. That the said 5,500,000 gallons of water, if allowed to flow down the said river to the said falls, might be made equivalent, as estimated by C. Walker, an eminent civil engineer, to about one hundred and sixty horse-power at the mills, at the foot of the falls. That at the time of laying down the twenty-four inch main in 1857, the level of the twelve-inch main was changed by the Commissioners at one place, by which a greater and more rapid flow through it was caused, equal deponent believed, to about double the quantity drawn off before such alteration. That on the 28th February last, the said Amos E. Botsford caused a copy of a paper (A) to be served on the Commissioners. This paper was signed by Amos E. Botsford, and after stating that the Commissioners and he had failed to agree upon the amount of compensation to which he claimed to be entitled for damages sustained for water taken from Little River, requested the Commissioners to take the necessary steps for summoning a jury to assess the damages he claimed, adding: "I claim to have my damages assessed under each of the fol"lowing named Acts of Assembly: Act 2 Wm. 4, c. 26, entitled ‘An "Act to incorporate sundry persons by the name of the St. John "Water Company,' and the several Acts in amendment and incident "thereto: the damage I claim is, for abstraction of the water by the "Commissioners, which water, but for such abstraction, would have "flowed down Little River through and along my property, which "property is situated on Little River." To which a reply (B) declining to take steps for summoning a jury in accordance with his request, was received from the Commissioners on the 17th March last. That on the 17th March, Amos E. Botsford caused a copy of a paper (C) to be served on the Commissioners. To which the Commissioners, by their solicitor, replied by letter (D). "That the Commissioners are not aware that any damage whatever has been "done to Mr. Botsford by any of the operations of the said Com The Queen v. Commissioners of Sewerage, &c. "missioners, and they therefore decline to take any steps as required "by his letter of the 17th March." That by a deed of partition between the heirs of the said Sarah L. Botsford, dated prior to the 24th of February, and some time during the summer of 1865, all the other heirs remitted and acquitted unto Amos E. Botsford all right and title to the said lot of land, except their right to damages occasioned by the said obstruction on the said Little River, which were expressly reserved, and when recovered, to be divided amongst the said heirs, in proportion to their several claims in the said estate of the said Sarah L. Botsford. That William Botsford died 8th May, 1864, after which Amos E. Botsford became the owner of the unexpired term of the said lease, by virtue of an arbitration between him and the said Commissioners, who had purchased the same from the holders of the said lease, some time previous to the death of the said William Botsford, for the purpose, as he, the said A. E. Botsford believed, of preventing any legal steps being taken by the holders of said lease against the unlawful acts of said Commissioners in diverting the waters of said stream. On the part of the Commissioners, the affidavit of the chairman, E. E. Lockhart was produced, setting forth that in Michaelmas Term, 28th Victoria, an application was made for a mandamus, to compel the defendants to take necessary steps to ascertain the amount of compensation which should be paid to the owners in fee of a certain lot of land in the Parish of Simonds, situated on the north side of the new Loch Lomond road, so called, known and distinguished as lot No. 3, Class E, on the Schedule annexed to a certain deed of partition dated 12th November, 1824, and made between the heirs of the late Hon. William Hazen, for damages caused thereto by the operations of the St. John Water Company, and by the said defendants. That the application was made on behalf of Frances E. Murray, Ellen Murray, Amos E. Botsford, Chipman Botsford, Le Baron Botsford, Sarah Ann Hazen, and Blair Botsford, then alleging themselves to be the owners in fee simple, as heirs, or grantees of the heirs, of the late Sarah L. Botsford. That a rule nisi was granted, returnable on the second Saturday in said term, and a copy served on the deponent, by which the Commissioners were ordered to show cause why a mandamus should not issue, to compel them to take the necessary steps under the provisions of the several Acts of Assembly respectively, viz:-2 Wm. 4, c. 26; 12 Vict. c. 51; 18 Vict., c. 38; some or one of them, and all Acts in amendment thereof, to ascertain the amount of compensation which should be paid to the owners in fee of a certain lot of land, for the use and convenience of the said lot of land, and the damage caused thereto by the operations of the said St. John Water Company, in laying The Queen v. Commissioners of Sewerage, &c. down a certain main or conductor, in and through the same, in the year 1851; also for the use and convenience of the same lot, and damage caused thereto, by the operations of the Commissioners of Sewerage and Water Supply, &c., for the time being, in laying down a certain other main or conductor in 1857, in and through the said lot of land. That cause was shown on behalf of the said defendants against the said rule, and the same was discharged in Easter Term 1865, on the ground that there had been no request to the said defendants to apply to a Justice of the Peace for a warrant to summon a jury, and no absolute refusal on the part of the said defendants. The St. John Water Company was originally incorporated under the 2nd Wm. 4, c. 26; and by the 15th Sect. full power and authority was given to the company to draw water from, erect reservoirs on, and to carry pipes or conductors through (when such should be deemed absolutely necessary for the conveyance of water to the City of St. John by the said Corporation), the private property of individuals, whose lands might lie at the source, or in the line the said Corporation should think it expedient to convey the water from, or through which it might be necessary to carry such pipes or conductors, or erect such reservoirs; provided always, that no such water be drawn, reservoirs erected, &c., without a reasonable and proper compensation being allowed and paid, for the use and convenience of the same, and for any damage sustained by the operations of the company, to be agreed upon by the Corporation and the respective owners of such private property; and in case of disagreement, compensation to be determined by three arbitrators, one to be chosen by the Corporation, and one by the owners of the land, which two arbitrators should choose a third; and in case of their not agreeing in such choice within ten days after their appointment, then the Lieutenant Governor, upon application of the Corporation, to appoint the third arbitrator: the award of such arbitrators, or any two of them, to be final and conclusive. In case the owners of such private property should decline making such agreement, or appointing such arbitrator, then the Corporation might apply to the Supreme Court, and such Court was empowered to issue a writ or warrant to the sheriff of the City and County of St. John, requiring him to empanel twelve disinterested freeholders, which jury, upon their oaths, should "inquire of, assess, and ascertain the dis"tinct sum or sums of money, or annual rent to be paid for the use "and convenience of such private property, or the indemnification "to be made for the damage that may or shall be sustained." The inquisition to be returned and filed in the office of the Clerk of the Pleas, and to be final and conclusive between the parties; the costs |